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Washington, D.C. The Inter-American Commission on Human Rights (IACHR)
expresses its deep concern over the serious setback in human rights that
would represent the constitutional reform that modifies Articles 116, 152
and 221 of the Constitution of Colombia that significantly expands the scope
of the military criminal jurisdiction.

According to information the Commission has received, on December 11,
2012, the full Senate of Colombia approved the reform in final debate; and
on December 28, 2012, Legislative Act No. 2 on Military Jurisdiction was
promulgated. The Inter-American Commission considers that various provisions
that were approved are incompatible with the American Convention on Human
Rights. Moreover, the reform contains ambiguous provisions that depend on
subsequent implementing legislation; consequently, this creates legal
uncertainty.

Further, the reform establishes that alleged crimes committed in the
framework of a military operation would be tried under the military criminal
jurisdiction, and international humanitarian law would apply. Although the
reform excludes crimes against humanity, genocide, and a series of grave
human rights violations from being judged in military courts (it refers to
forced disappearance, extrajudicial execution, sexual violence, torture, and
forced displacement), it establishes that other grave human rights
violations would be heard before courts of military jurisdiction, for
example war crimes and arbitrary detentions, among others.

In addition, the reform establishes that cases involving military service
would be heard by military courts and that, exceptionally, in cases of
doubt, a joint commission composed of representatives of the military and
civil jurisdictions will intervene to determine which jurisdiction has
competence. In this sense, the reform inverts the current rule, recognized
repeatedly in the jurisprudence of the Inter-American System, that cases
would normally be heard in the ordinary jurisdiction, and that the transfer
to military jurisdiction would be the exception.

Therefore, under the new law, it would be the military criminal justice
system that would carry out the first investigation activities following a
presumed crime committed by a member of the public force. The initial steps
of an investigation serve as the basis for taking certain central decisions
and for developing any subsequent stages, and therefore have a very
particular importance in the administration of justice.

In this regard, the standards of the inter-American human rights system
have repeatedly and consistently established that the investigation of human
rights violations must be carried out by the courts of ordinary
jurisdiction, both in times of peace and in times of war. The Inter-American
Court of Human Rights has stated: "In a democratic State of law, the
military criminal jurisdiction shall have a restrictive and exceptional
scope and be directed toward the protection of special juridical interests,
related to the tasks characteristic of the military forces. Therefore, the
Tribunal has previously stated that only active soldiers shall be prosecuted
within the military jurisdiction for the commission of crimes or offenses
that based on their own nature threaten the juridical rights of the military
order itself."

As to the determination that international humanitarian law would apply
exclusively in the prosecution, in military courts, of any conduct by
members of the public force that could constitute a crime, the
inter-American human rights system has maintained that in certain
circumstances, both sets of norms will apply in a complementary manner.
Consequently, the IACHR is concerned about the vision reflected in this
constitutional reform, which suggests that international humanitarian law
and international human rights law are mutually exclusive bodies of law.

On the basis of the inter-American standards that require States to judge
human rights violations in courts of ordinary jurisdiction, various
countries of the region have adopted reforms to significantly restrict the
scope of military jurisdiction. Colombia had been one of those countries.
Over the last 15 years, through changes in law, jurisprudence, and practice,
Colombia had ensured that human rights violations committed by members of
the security forces would be judged by courts of ordinary jurisdiction.
Important reforms along the same lines have taken place in Argentina and
more recently in Mexico.

The constitutional reform on military criminal jurisdiction would reverse
that progress and would constitute a serious setback that jeopardizes the
right to justice for victims of human rights violations.

The Commission must highlight the concerns expressed by its press release
144/12, issued at the conclusion of the on-site visit to Colombia, as well
as those set forth by the U.N. High Commissioner on Human Rights, by the 11
U.N. human rights rapporteurs, and by the Office of the High Commissioner on
Human Rights in Colombia.

As stated in Article 41 of the Convention, the IACHR has the main
function of promoting respect for and defense of human rights, from which it
derives the function of giving input to the States in order to ensure that
the legislative or other acts related to human rights are in agreement with
the applicable inter-American standards. The Commission expects the
Colombian State take into consideration the relevant standards that have
been established by the organs of the Inter-American System. The IACHR will
establish its position in more detail on the implications of this
constitutional reform in the country report that will be elaborated during
2013, as a result of the recent in loco visit from December 3 to 7,
2012.

A principal, autonomous body of the Organization of American States
(OAS), the IACHR derives its mandate from the OAS Charter and the American
Convention on Human Rights. The Inter-American Commission has a mandate to
promote respect for human rights in the region and acts as a consultative
body to the OAS in this area. The Commission is composed of seven
independent members who are elected in an individual capacity by the OAS
General Assembly and who do not represent their countries of origin or
residence.